Brown Moves to Nix Prop. 8

Posted on Dec 20, 2008

California Attorney General Jerry Brown, who’s considering running for another stint as the Golden State’s governor, has changed his position on Proposition 8 and has asked the state Supreme Court to nullify the gay marriage ban on grounds that it violates citizens’ inalienable rights as guaranteed by the California Constitution.

Not surprisingly, the Protect Marriage coalition, which supports Proposition 8, begs to differ and has enlisted prosecutor Kenneth Starr (remember him?) to argue its case before the state Supreme Court around March 2009.

Los Angeles Times:

The California Constitution protects certain rights as “inalienable,” Brown wrote. Those include a right to liberty and to privacy, which the courts have said includes a person’s right to marry.

The issue before the court “presents a conflict between the constitutional power of the voters to amend the Constitution, on the one hand, and the Constitution’s Declaration of Rights, on the other,” Brown wrote.

The issue “is whether rights secured under the state Constitution’s safeguard of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.”

Voters are allowed to amend other parts of the Constitution by majority vote, but to use the ballot box to take away an “inalienable” right would establish a “tyranny of the majority,” which the Constitution was designed, in part, to prevent, he wrote.

In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. “This analysis was not evident on the morning after the election,” he said.